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Minor Trespassers - no heightened duty of care under the Act

The High Court recently examined the duty of care owed by occupiers to a trespasser who is a minor.

Michael Ward (a minor) brought an action for damages against the Office of Public Works (“OPW”) for damages arising from an injury he had while playing football on a patch of lawn contained within government buildings.

The buildings included a driving test centre and a social welfare office in Longford which also contained a grassy patch of lawn which was surrounded with a kerbed edge. A wall of 3 to 4 feet in height surrounded the perimeter. There was security at the premises during business hours and it was padlocked and secured during evenings and weekends.

On the day in question, Michael Ward was playing football on the patch of grass with his brother and a number of other children. He alleged that he fell on the kerbing edge causing a cut to his knee leaving a noticeable scar.

Plaintiff’s Argument

Michael Ward accepted that he was a trespasser under the Occupiers Liability Act 1995. He maintained that the OPW was aware of an established practice of local children crossing the boundary wall to play football and that the green patch of grass was an “allurement”. He argued that the kerbing edge constituted a hazard and that the OPW had breached their duty of care towards him.

Decision

Hanna J dismissed the case for the following reasons;

The duty of care towards trespassers under the Occupiers Liability Act 1995 is not to intentionally injure or to act recklessly towards them.

The Plaintiff’s argument that the lawn was an allurement was a “bridge too far” holding that an allurement must be such that – “no normal child could be expected to restrain himself from intermeddling, even if he knows that to intermeddle is wrong.”

The circumstances of the Plaintiff’s accident were not within the reasonable contemplation of the OPW. There was insufficient evidence that the OPW had any knowledge of an ongoing issue with children playing football on the grassy lawn.

The exposed edge of the kerbstone did not constitute a hazard.

Hanna J was wary of imposing too high of an obligation on occupiers, stating that–

“To hold that the Defendant would be under any greater duty, for example to build a much higher wall, or should have barbed wire on it or have full–time security in circumstances such as these, it seems to me would be to out a preposterous level of obligation on a public authority.”

The case demonstrates that the duty of care towards trespassers remains extremely limited for reasons of public policy. The age of a Plaintiff will not necessarily make it any easier to establish a duty of care on an occupier, unless it can be established that a normal child would be “unable to restrain himself” from entering the premises.